Chalutzah and a Kohen

Yevamot (9:3) | Yisrael Bankier | a year ago

The Mishnah (9:3) discusses the law regarding a marriage that was
prohibited yet binding. In other words, if the relationship is
prohibited by way of a rabbinic prohibition or a negative biblical
prohibition that is punishable with lashes, then the marriage is still
binding and a divorce would be required. The Mishnah however list
further rabbinic "fines" that are placed on such a union, e.g. the base
financial obligation of a ketubah does not apply. The Mishnah
however differentiates between cases as to when these fines apply. In
cases where the union involved "shniyot" – rabbinically prohibited
familial relationships – the fines are listed. In the following cases
however, the fines do not apply: where a kohen gadol marries a widow,
a kohen marries a divorcee or a chalutzah1, a mamzer or netin
marries a bat Yisrael or an Yisrael marries a netina or
mamzeret.

The Bartenura explains that the difference between shniyot and the
second group is that shniyot are prohibited rabbinically whereas the
rest are prohibited on a biblical level. Why should the two groups be
treated differently? The Bartenura explains that this is because
"divrei sofrim tzrichim chizuk" - rabbinic laws require strengthening.
Consequently, in the case of shniyot, they are reinforced with these
fines if violated. The difficulty with this explanation is that the odd
case in the second list, those that do not have the fines applied, is
where a kohen marries a chalutzah, which is prohibited rabbinically.

The Bartenura explains that despite the fact that a kohen marrying a
chalutzah is prohibited rabbinically, in this case it is treated like
those that are prohibited on a biblical level. The Tosfot Yom Tov
however finds this explanation difficult. Why should this case be
treated than shniyot? Furthermore, the Gemara (85b) points to the
case of a chalutzah to reject the rabbinic-biblical distinction in
search for a different explanation.

Instead the Tofsot Yom Tov cites the Beit Yosef who explains that
really the case of chalutzah should not be included in the second list
and is treated the same as shniyot. Why then does it appear in our
text? He explains that in general, throughout Mishnayot that cases of
a gerusha and chalutza are mentioned together. The Mishnah
happened to follow this pattern as well.

Perhaps however, we can defend the Bartunera based on the Ritva that
differentiates between the prohibition of chalutzah and shniyot.
When the Gemara (24a) mentions that the prohibition of a kohen
marrying a chalutzah is rabbinic, the Gemara follows by citing a
Beraita that suggest that prohibition is biblical. The Torah
(Vayikra 21:7) writes: "…and a woman divorced from her husband, [a
kohen] shall not take...". The Beraita explains that had the
pasuk written "isha" we would have learnt the prohibition of a
kohen marrying a divorcee. We learn the prohibition of a kohen
marrying a chalutza since it is written "*ve'isha". The Gemara
answers that the Beraita should not be understood as the source for
the prohibition. Instead the pasuk is to be understood as an
asmachta. In other words, the source is rabbinic, and the pasuk* is
used a hint or a mark used for memory.

The Ritva reasons that this is the basis for why the prohibition of
chalutzah is treated that same as other biblical prohibitions. Recall
that the fines apply to rabbinic prohibitions since they require
strengthening. As we have seen the prohibition of chalutzah is
different. Since there is an asmachta, it is less likely that one will
mistakenly err and no further strengthening is required.

1 This refers to a woman whose husband died without them having any
children. The brother is required to before either yibum , effectively
marrying her, or chaliztah , a process through which she is free to
marry someone else. A chalutzah refers to a woman who has performed
chalitzah.